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Himachal Pradesh High Court · body

2014 DIGILAW 672 (HP)

Atma Ram v. State of Himachal Pradesh

2014-05-30

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Rajiv Sharma, Judge: This appeal is directed against the judgment dated 17.9.2008 passed by learned Special Judge-II, Solan, District Solan, H.P., in Sessions Trial No.10-S/7 of 2008, whereby the accused/appellant (hereinafter referred to as the “accused” for the sake of convenience), who was charged with and tried for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter referred to as the “Act” for the sake of convenience), was convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a undergo one year imprisonment under Section 20 of the Act. 2. The case of the prosecution, in a nutshell, is that on 10.3.2008, the police laid Nakka on National Highway 22 near Police Station, Dharampur. At about 12.30 A.M, a bus CTU No.CH01G-8872 came from Shimla side. It was proceeding towards Chandigarh. The bus was stopped for checking. It was searched. The accused was sitting on seat No.19. He had placed a bag between his legs. On suspicion, bag was opened. It contained charas. Since there was no sufficient place and light in the bus, the accused as well as bag was taken to the Police Station. The driver, conductor and one passenger were also called to the Police Station. The charas weighed 6.500 grams. Two samples of 25 grams each were taken out, which were packed and sealed on the spot. The remaining bulk was also packed and sealed in the parcel. The accused was arrested. The investigation was completed and the challan was put up in the court after completing all the codal formalities. 3 The prosecution examined as many as eleven witnesses in support of its case. The accused was examined under Section 313 Cr.P.C.. The accused pleaded innocence and claimed trial. Learned Special Judge-II, Solan, convicted and sentenced the accused vide judgment dated 17.9.2008, as stated hereinabove. Hence, the appeal argued that the prosecution has failed to prove its case against the accused. 5 Mr. M.A. Khan, learned Additional Advocate General, has supported the impugned judgment dated 17.9.2008. 6 We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 7. PW1, Constable Om Parkash, deposed that he was posted as Assistant Reader to Superintendent of Police since 2002. 5 Mr. M.A. Khan, learned Additional Advocate General, has supported the impugned judgment dated 17.9.2008. 6 We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 7. PW1, Constable Om Parkash, deposed that he was posted as Assistant Reader to Superintendent of Police since 2002. On 10.3.2008, at 1.00 P.M., Constable Kamal Kumar brought special report, Ext.PW1/A. He produced the report before Shiv Pal Verma, Superintendent of Police, who perused the same and put his endorsement. 8. PW2, Constable Rakesh Kumar, deposed that on 10.3.2008, one parcel bearing mark S1, stated to be containing charas, was handed over to him by MHC Parveen along with NCB form in triplicate. He took the same to FSL Junga and deposited there vide R.C. No.166/07. 9. PW3, HC Kedar Nath, deposed that on 10.3.2008, a Nakka was laid in front of the Police Station. At about 1.30 A.M., a bus bearing registration No.CH-01G-8872 was signalled to stop. The bus was checked. The accused was found sitting on seat No.19. A bag was kept by the accused between his legs. On search, the charas was found in the bag. HC weighed 6.500 grams. Two samples of 25 grams each were taken out. The samples were packed in cloth pieces and were sealed with seal impression “H”. The parcel was marked as SI and sample parcel was marked as SII. NCB form was filled-in. One copy of the seizure memo was given to the accused. In cross-examination, he admitted that impression of SI and SII were not marked on one of the sample parcels, Ext.P7. According to him, they started checking the bus from seat No.1 and reached to seat No.18. About 8-10 bags were checked prior to that. A number of bags were lying on the racks. 10. PW5, Jivesh Dutt Sharma, deposed that he was working as Legal Manager at Noida INNODATA ISOGAN Pvt. Ltd.. During intervening night of 9/10 March 2008, he boarded a Bus from Solan to Chandigarh. It was scheduled from Shimla to Chandigarh. He was sitting on seat No.20. The accused was sitting on seat No.19. The police laid a Nakka when the bus reached near Dharampur around 1.30 A.M. Two police officials, one from front door and second from rear door, entered the bus and started checking luggage of the passengers. It was scheduled from Shimla to Chandigarh. He was sitting on seat No.20. The accused was sitting on seat No.19. The police laid a Nakka when the bus reached near Dharampur around 1.30 A.M. Two police officials, one from front door and second from rear door, entered the bus and started checking luggage of the passengers. Charas was recovered from a bag carried by the accused. The accused was taken to Police Station. He along with driver and conductor of the bus went to the Police Station after 5-10 minutes. The police opened the bag in their presence. The charas was found in round shape and stick shape pieces. It weighed 6.500 grams. Two samples of 25 seal impression “H”. Remaining charas was packed and sealed in another parcel with seal impression “H”. Bus tickets, Ext.PW5/A, were taken into possession by the police. In cross-examination, he deposed that the bag Ext.P1 was lying on the rack of the bus. The bags of other passengers were also lying on the racks. 11 PW6, Jasbir Singh, deposed that he was conductor with bus No. CH-01G-8872. The bus left Shimla at 11.15 P.M.. When the bus reached at Dharamshala by 1.15-1.30 A.M., it was stopped by the police. He went out and police told that they would check the bus. The police personnel entered the bus. He went to nearby bathroom. The accused along with a bag was taken by the police to Police Station. On opening the bag, the object, described by the police as charas, was found. Thereafter, the police prepared the documents. The charas weighed 6 kgs. Two samples of 25 grams each were drawn. Samples were packed and sealed. They were made to sign on sample parcels, Ext.P7 and Ext.P8. He was declared hostile. In cross-examination conducted by the learned Public Prosecutor, he admitted that the police had taken the accused and bag to Police Station and all the proceedings were conducted in his presence in the Police Station. 12 PW7, HC Hakim Singh, testified that during the intervening night of 9/10.3.2008, at about 1.30 A.M., a CTU bus No.CH01G-8872 was stopped for checking. The passengers kept a bag on his legs. The bag was checked in the presence of driver Ramesh, Conductor Jasbir and one passenger Jivesh Dutt. On opening the bag, charas was found. The accused along with bag was taken to the Police Station. The passengers kept a bag on his legs. The bag was checked in the presence of driver Ramesh, Conductor Jasbir and one passenger Jivesh Dutt. On opening the bag, charas was found. The accused along with bag was taken to the Police Station. He also deposed the manner in which the bulk and samples of the charas were sealed. 13 PW8, HC Praveen Kumar, testified that he registered the FIR Ext.PW8/A and recorded daily diary No.2-A dated 10.3.2008, Ext.PW8/B. On 10.3.2008, at 9.30 A.M., ASI Ram Singh deposited with him a parcel containing recovered charas in bulk bearing ten impressions of seal “H” at three places, each marked with SI and S2, NCB form in triplicate, recovery memo and sample seals. He entered the same in the malkhana register. According to him, on the same day, he sent one of sealed parcels along with NCB form, recovery memo, sample of seal and docket through Constable Rakesh Kumar to FSL Junga. In cross-examination, he admitted that the register brought by him was not prescribed for Malkhana. He also admitted that the signature of the official, who deposited the case property, did not find mention in the abstract of malkhana register, Ext.PW8/D. 14 PW9, Constable Kamal Kumar, testified that he had handed over the special report, Ext.PW1/A to Reader to the Superintendent of Police, Ext.PW1/A. a tea stall nearby Police Station, Dharampur. On 10.3.2008, at about 1.30 A.M., HC Hakim Singh came to him and took scale and weights from his shop. 16 PW11, ASI Ram Chand, deposed that during the intervening night of 9/10.3.2008, a Nakka was laid on National Highway 22 in front of Police Station Dharampur. He was heading Nakka party. At 1.30 A.M., a CTU bus, CH-01G-8872, Shimla to Chandigarh, was stopped for checking. Accused was sitting on seat No.19. He was wearing sky blue colour sleeveless jacket. He had placed a bag between his legs. Jivesh was sitting on seat No.20 by the side of accused. On opening the bag, charas was found. The accused and the bag were taken to the Police Station as there was no sufficient light and space inside the bus. The charas weighed 6.500 grams. Two samples of 25 grams each were drawn from recovered charas and were sealed in two cloth parcels with seal impression “H”. Impression of seal was drawn in a separate parcel. The accused and the bag were taken to the Police Station as there was no sufficient light and space inside the bus. The charas weighed 6.500 grams. Two samples of 25 grams each were drawn from recovered charas and were sealed in two cloth parcels with seal impression “H”. Impression of seal was drawn in a separate parcel. Sample of seal was taken on NCB form, Ext.PW11/A. The seal after use was given to Jivesh Dutt. The spot map was prepared vide Ext.PW11/B. The case property along with NCB form was handed over to MHC Parveen Kumar. He also prepared special report. He had marked the samples as S1 and S2 and bulk parcel as R1. In cross-examination, he admitted that he checked the buses prior to checking of the bus in question also. According to him, no list was prepared nor he could luggage of 9-10 persons after entering the bus. A number of bags were lying on the racks. 17 PW5, Jivesh Dutt Sharma, was an independent witness. He categorically stated in his cross-examination that the bag Ext. P1 was lying on the rack of the bus, whereas PW3, HC Kedar Nath deposed that the bag was found kept inside the legs of the accused. According to PW7, HC Hakim Singh, the accused had kept the bag, Ext.P1 on his legs. PW11 ASI Ram Chand deposed that the accused was holding the bag between his legs. It has come on record that the luggage of the passengers was also lying on the racks. It casts doubt on the version of the prosecution whether the bag, Ext.P1 was lying between the legs of accused, on the legs of the accused or on the rack of the bus. 18. PW6, Jasbir Singh, deposed that he could not say if the accused was carrying anything when he boarded the bus. He was declared hostile. According to PW3 HC Kedar Nath, PW5, Jivesh Dutt Sharma, PW6 Jasbir Singh, PW7 HC Hakim Singh and PW11 ASI Ram Chand, the sealing process was completed on the spot. The sample parcels were sealed with seal impression “H”. 19 PW3, HC Kedar Nath, categorically deposed in his cross-examination that the then SHO Baldev Singh was present in the Police Station. NCB form, Ext.PW11/A, was filled in by PW11 ASI Ram Chand. PW11 ASI Ram Chand did not Section 55 of the Act. The sample parcels were sealed with seal impression “H”. 19 PW3, HC Kedar Nath, categorically deposed in his cross-examination that the then SHO Baldev Singh was present in the Police Station. NCB form, Ext.PW11/A, was filled in by PW11 ASI Ram Chand. PW11 ASI Ram Chand did not Section 55 of the Act. He directly deposited the case property with MHC PW8, HC Praveen Kumar. He while filling-in NCB form wrote against column No.9 “NA”. What prevented PW11 ASI Ram Chand to place the case property before the SHO Baldev Singh, who was present in the Police Station at the relevant time as per statement of PW3 HC Kedar Nath, is beyond understanding. Though, section 55 of the Act is not mandatory, but there has to be compliance of the same. The purpose of placing the case property before the Incharge of the Police Station is to ensure its safe custody or to ensure that the sealing process was undertaken as per law and there was no tampering. 20 PW8, HC Praveen Kumar, testified that he had sent the case property to FSL Junga through Constable Rakesh Kumar. However, in cross-examination, he categorically admitted that the register brought by him was not prescribed for Malkhana use. He categorically admitted that the signature of the official, who deposited the case property, did not find mention in the abstract of malkhana register, Ext.PW8/D. He had also not entered the name of the official at Sr. No.333, who had deposited the case property. There are material contradictions, inconsistencies and embellishments in the prosecution witnesses. The prosecution has failed to establish that the accused was found in exclusive and conscious possession of the charas. analysis, made here-in-above, the appeal is allowed and judgment dated 17.9.2008 passed by learned Special Judge-II, Solan, District Solan, H.P., in Sessions Trial No.10-S/7 of 2008 is set aside. The accused is acquitted of the charge framed against him. The fine amount, if any deposited by the accused, is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 22 The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.